The Minimum Age of Criminal Responsibility in Victoria (Australia): Examining Stakeholders’ Views and the Need for Principled Reform
| Author | Wendy O’Brien,Kate Fitz-Gibbon |
| Published date | 01 August 2017 |
| Date | 01 August 2017 |
| DOI | http://doi.org/10.1177/1473225417700325 |
| Subject Matter | Articles |
https://doi.org/10.1177/1473225417700325
Youth Justice
2017, Vol. 17(2) 134 –152
© The Author(s) 2017
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1473225417700325
journals.sagepub.com/home/yjj
The Minimum Age of Criminal
Responsibility in Victoria (Australia):
Examining Stakeholders’ Views and
the Need for Principled Reform
Wendy O’Brien and Kate Fitz-Gibbon
Abstract
In Australia, children as young as 10 are charged, convicted and sentenced for breaches of the law. Drawing
on interviews with youth justice professionals in Victoria, this study finds that inconsistencies in practice
undermine the extent to which the common law presumption of doli incapax offers an effective legal safeguard
for very young children in conflict with the law. This article advocates that the Australian minimum age of
criminal responsibility be increased to 14, that the principle of doli incapax be applied consistently to all
persons under the age of 18 and that justice responses be supplanted by therapeutic supports for children
and families.
Keywords
child offenders, children’s rights, doli incapax, human rights, minimum age of criminal responsibility,
youth justice
Introduction
On 27 January 2016, an 11-year-old boy in Western Australia became the ‘youngest known
person’ in Australia to be charged with murder (Booth, 2016). The young aboriginal child,
who was charged alongside three other persons, is currently detained, awaiting trial for a
crime that carries a maximum penalty of life imprisonment. In response to the case,
Amnesty International called on the Australian Government to raise the minimum age of
criminal responsibility to 12 years, noting that ‘Australia’s out-of-step laws dictate’ that
this boy could be held criminally responsible, despite lacking the neural development to
form the requisite culpability (as cited in Booth, 2016). However, in his response to the
international backlash, Western Australian Attorney-General Michael Mischin emphasised
the safeguards in place to ensure just processes for children in conflict with the law:
Corresponding author:
Wendy O’Brien, Deakin University, Burwood, VIC 3125, Australia.
Email: wendy.obrien@deakin.edu.au
700325YJJ0010.1177/1473225417700325Youth JusticeO’Brien and Fitz-Gibbon
research-article2017
Article
O’Brien and Fitz-Gibbon 135
a child under the age of 14 years is not criminally responsible unless it can be proved beyond
reasonable doubt that at the time of the alleged offence that accused child had the capacity to
know that he or she ought not do the act or make the omission giving rise to the offence. In
short, the law already takes into account the accused child’s level of maturity and intellectual
development. (As cited in Booth, 2016)
What the Attorney-General refers to here is the presumption of doli incapax – a com-
mon law presumption that children aged 10–13 years (inclusive) lack the capacity to form
criminal intent. The presumption applies in all Australian state and territory jurisdictions
and, as demonstrated here, is understood to mitigate the impact of Australia’s low mini-
mum age of criminal responsibility (10 years of age).
In Australia, juvenile justice is the responsibility of each state and territory – an
arrangement that leads to considerable disparities in law and practice. In Western
Australia, for example, juvenile justice is administered by the Department of Corrective
Services, which also assumes responsibility for adult offenders. In South Australia, by
comparison, juveniles in conflict with the law are dealt with by an arm of the Department
for Communities and Social Services, the same government department that administers
child protection services. In Victoria, juvenile justice was the responsibility of the
Department of Health and Human Services until early 2017, when ‘riots’ in youth justice
facilities prompted the state government to wrest responsibility from the child welfare
department and place youth justice in the hands of the Department of Justice and
Regulation, the same department that manages adult prisons (Andrews, 2017). Variations
of this kind in the statutory governance of juvenile justice, as well as considerable legal
differences between states and territories, complicate efforts to assess the state of
Australian juvenile justice policy nationally.
This article presents empirical data derived from interviews with legal stakeholders in
the Australian state of Victoria, and identifies that inconsistencies in practice undermine
the extent to which the common law presumption of doli incapax offers a legal safeguard
for very young children in conflict with the law. This article advocates that the Australian
minimum age of criminal responsibility be increased to 14, that the principle of doli inca-
pax be applied consistently to all persons under the age of 18 and that justice responses be
supplanted by therapeutic supports for children and families.
In doing so, this article recognises that, while the age at which a child can be held
criminally responsible for his or her actions is a matter of law, the impacts of this legal
threshold are most certainly not restricted to the legal sphere. There is a robust body of
literature that establishes that a child’s contact with the criminal justice system is crim-
inogenic (Moffitt, 1993), and that the earlier a child comes into conflict with the law
the more protracted his or her contact with the criminal justice system is likely to be
(Australian Institute of Health and Welfare (AIHW), 2013). Informed by an evidence
base on the neurobiological impacts of early childhood trauma (Van der Kolk, 2003),
and knowledge from developmental psychology about both the corrosive and protec-
tive factors for child wellbeing (Rutter, 1979), the United Nations (UN) has led the
establishment of a raft of global norms on juvenile justice. Among the guidelines for
UN Member States is the recommendation that no child under the age of 12 be charged
or prosecuted for a criminal offence (United Nations Committee on the Rights of the
To continue reading
Request your trial